Law/Med: My Frustration With Law

February 9, 2008

When I read Kurzman’s post, I was amazed. My first reaction was “There is no way that statute is constitutional under the Akron decision”. For those of you that aren’t law geeks, Akron in a case somewhere in the middle of post Roe case law that said mandatory waiting periods are unconstitutional. After reading the Kurzman summary, I decided to pull the case along with some secondary sources, and I’m more confused. This is why they call it legal “practice,” its going to take a while before I can put cases together and assert with full confidence what the law is.

In 1985, IL had a statute that said something along the lines of: If your a minor and you want to get an abortion, you have to tell your parents and wait 24 hours, unless they sign something saying they are ok with it, or you go through another process that demonstrates either the abortion is needed or that you are emancipated for the purposes of that decision. The court then struck down only the waiting period saying that it didn’t further a legitimate state interest (although forced parental notification, in the eyes of the 7th Circuit did).

Fast forward 10 years to the passage of the rule Kurzman just talked about and the idea of letting parents know 48 hours earlier. I did a VERY quick search and couldn’t find a single case challenging this ruling. How can that be? I’m not suprised its constitutional (I can count to five… Rehnquist, Thomas, Scalia, O’Connor, Kennedy…….) but by the same token, you would think there would be AT LEAST A CHALLENGE that forces the 7th circuit to distinguish between the cases.

Based on a quick 1L read, I’m not sure how a parental notifiction 48 hours earlier by a doctor and a child notification followed by a 24 hour waiting period are at all different. Either way, you have to “wait” before you can perform the procedure.

And this is why I’m frustrated with the law. Either the law has drawn a distinction I just don’t see, or the law changed without a case, or there is a case floating around that I haven’t found. Either way, frustrating.